With approximately $70 billion in new congressional funding fueling immigration enforcement, employers should expect U.S. Immigration and Customs Enforcement (ICE) to significantly expand worksite investigations and Form I-9 audits. Since November 7, 1986, U.S. employers have been required to complete Form I-9 to verify the identity and employment authorization of their employees and to maintain accurate Form I-9 records. Recently, ICE significantly raised the stakes for employers by reclassifying several Form I-9 errors from technical to substantive violations without formal notice and comment rulemaking. The newly updated ICE guidelines, combined with ICE’s active enforcement posture, significantly increase the risk to employers of exposure and large fines in the event of an I-9 audit. Together, these developments signal a more aggressive worksite enforcement environment and make proactive I-9 compliance more important than ever.
Background for I-9 Audit and Compliance
These revisions overturn enforcement principles that have governed I-9 compliance for nearly three decades. Historically, I-9 violations were categorized as either “technical” or “substantive.” Technical violations like clerical errors are correctable without penalty, either during an internal audit, or within 10 days upon issuance of a Notice of Technical or Procedural Errors by ICE. Previously, if the employee’s date of birth was missing from Section 1, the employee could correct the missing information in Section 1, sign and date the correction, thus removing the employer’s exposure for the technical violation in the event of an ICE audit. Under the new guidance, this violation is now a substantive violation, which is not correctable and could result in immediate, cumulative fines (per form) following a formal I-9 audit by ICE.
The New Guidance
According to ICE’s newly updated guidance, the following ten previously technical errors have been reclassified as immediately fineable substantive errors:
- Missing employee name or date of birth (Section 1)
- Missing USCIS/alien number (Section 1)
- Missing expiration date (Section 1, Box 4)
- Missing first date of employment or date of rehire for the employee in the Certification
- Missing or undated signatures, for the employee (Section 1) or employer representative (Section 2)
- Failure to record or incomplete List A, B, or C document information in Section 2 (document title, number, issuing authority, expiration date), even when the employer retains supporting documents with the Form I-9 and can transcribe the missing data onto the form
- Use of the Spanish-language Form I-9 outside Puerto Rico (for Spanish-speaking employees, in lieu of using a preparer or translator)
- Missing preparer or translator information, where such assistance has been used (Supplement A)
- Failure to include employer representative’s name and/or title (Section 2)
- Improper electronic signature practices, security measures, and audit trail records for electronic I-9 systems/platforms
ICE’s expanded guidance also now extends heightened scrutiny to remote I-9 verification. Errors such as failing to check the “alternative procedure” box (indicating documents were reviewed remotely) or using the alternative procedure to remotely review I-9 documents without being enrolled in E-Verify at the time are now being treated as uncorrectable, substantive errors.
What This Means for Employers
The reclassification of these errors as substantive violations recalibrates the standard for substantive compliance by an employer, bringing it closer to strict liability. It underscores ICE's focus on stricter enforcement through immediate and significantly steeper fines, which range from $288 to $2,861 per form for the first offense (with amounts increasing for subsequent violations). Within that range, the specific fine amount applied will depend on the percentage of substantive errors identified during an ICE I-9 audit. Because fines are assessed for each form, the cumulative financial exposure for employers can be severe. For example, an employer with 100 I-9 forms containing incomplete document information in Section 2 because they did not retain copies of the documents could now face fines ranging from $28,800 to $286,100 if they were to receive a Notice of Intent to Fine from ICE under the new guidance.
This change also eliminates much of the flexibility previously afforded to employers under the “good faith compliance defense,” which allowed correction of more types of technical violations and mitigation during a 10-day “cure” period. Because many previously technical errors have been reclassified as substantive errors, employers now have fewer opportunities to correct errors, and previously correctable errors can now result in rapidly accumulating fines. Importantly, while corrections do not eliminate liability for errors, they can positively impact the size of any penalty. An employer may use its good faith efforts to remediate errors to negotiate reduced fines. But it may be more difficult for employers to argue they acted in good faith when ICE has increased the number of errors that count as substantive failures under its new guidance.